Tag Archives: strategic litigation

South Africa: litigation, and beyond

‘”Litigation is warfare. And there is this thing called the “fog of war”.’ – David Mossop QC, Community Legal Assistance Society (Vancouver)

Litigation is often threadbare with risk and uncertainty. And the longer one marches forward along its path, the more certainly life gets in the way. This is particularly so in the area of public interest and community law, where clients often have multiple crises occurring, and few supports. So much legal work is done in the lead up to, after, or around the heat of the courtroom. Yet it is rarely celebrated, collated, or scrutinised.

The South African lawyers I met with were inspiring not only for their litigation work, but also the thinking they did beyond and outside of the courtroom. Much of this was in the areas of compliance, enforcement, and coordination of misaligned regulatory agents and systems. Below, in this final installment of the travel component of the blog, I set out a few examples of this work. Mapungubwe_hill_limpopo

Monitoring and reporting on institutional arrangements. Since 2010, the Centre for Applied Legal Studies (CALS) has been working with the Save Mapungubwe Coalition on responding to the Coal of Africa (CoAL) (listed on the ASX) mining project on land adjacent to the Mapungubwe Cultural Landscape World Heritage Site (Mapungubwe). I spoke to Louis Snyman, Attorney in the CALS Environment Programme, about his work on this matter. He talked me through CALS’s “experimental, multi-pronged” litigation strategy in this case, which is also set out in its research report titled Changing Corporate Behaviour: the Mapungubwe Case Study (Feb 2014), at p 20-21:

“Although often painted as hardened opponents of all mining, Coalition members tried to adopt a position that was always nuanced. It advocated a considered approach to where and how much mining would be conducted, while being opposed to mining near sites of the highest heritage value and ecological sensitivity. However, since the outcomes of litigation are always uncertain, the Coalition was prepared for the possibility that it would not be able to stop the development. Under this scenario, the Coalition resolved that it would take all necessary steps to ensure that CoAL operated with all the required licenses and that license conditions adequately minimised and addressed environmental impacts, and that CoAL would be held accountable for any non-compliance. Litigation, even if unable to stop the mine, could convince the company to revisit its environmental practices and apply for amendments to licenses that failed sufficiently to protect heritage, biodiversity and water resources.”

And so it did. The Coalition, with the legal assistance of CALS, launched numerous appeals against licenses and approvals granted to CoAL, and made an application for an interdict (an injunction) to prevent environmental harm while these processes were underway. Yet in October 2011, CALS and the Coalition resolved that the “strategic calculus” shifted in favour of negotiations with CoAL, and so commenced these negotiations. Despite stalling in 2012 due to a revelation that CoAL had withheld information from the Coalition, this process resulted in the Coalition being granted a seat on the Environmental Management Committee for the project. Since that time, the Coalition has managed to play a vital role in ensuring CoAL’s compliance to the governance scheme. The Changing Corporate Behaviour report sets out a series of useful lessons learnt along this path.

CALS also found that its extensive work on the Mapungubwe case presented a unique opportunity to scrutinise the efficacy of the state’s regulatory and institutional framework for environmental governance. It therefore compiled a further report titled Structures of Governance: Enhancing or Impeding Environmental Justice? (August 2014) that sets out its findings and recommendations in this area, and which it intends to use as an advocacy tool.

A taxonomy of (non)compliance. Lawyers for Human Rights is “an independent human rights organisation with a 35-year track record of human rights activism and public interest litigation in South Africa“. During my visit there, the Head of its Strategic Litigation Unit, David Cote, helpfully introduced me to the established categories of legal (non)compliance. image

This language provides a useful framework through which to assess the likely impact of available legal strategies. For example, one projected response to a court order may be incompetent noncompliance: where an institution will be practically unable to comply with the order. For example, a municipality may simply lack both the engineering skills, and financial resources, to provide its citizens with safe drinking water. In such cases, consideration may most usefully be directed to what action, and at what intervention point, would most effectively redirect resources in order to effect compliance.

Then there is traditional bad-faith noncompliance, vis-a-vis, for example, malicious compliance. The latter is where an institution complies with the words, but not the spirit, of a court order. Bad-faith noncompliance may require further enforcement litigation; however, a grudging form of compliance may be shifted by a more cooperative approach. Where there is an uncooperative old guard within a department with a new forward-thinking minister, for example, there may be more value in cooperating with the minister and encouraging robust departmental human resources practises, than in further litigation.

Interestingly, on further reading, this legal discussion seems to draw on the human resources literature of change management that deals in rule-related behaviour and responses to organisational reform. For example, one scale maps the movement from apathy and non-compliance, through various shades of compliance, to commitment. Other literature focuses on different forms of resistance to organisational change. This may be relevant to further expanding consideration of legal noncompliance.

For those in South Africa, the Public Interest Law Gathering to be held at Wits University in Johannesburg this 22-24 July 2015 is likely to feature a roundtable exploring these issues.

imageRemaining client-focused. I also met with Tashwill Esterhuizen, Litigation Attorney at the Social and Economic Research Institute (SERI). SERI undertakes legal and research work in order to advance the attainment of socio-economic rights of individuals, communities and social movements in South Africa. Tashwill and I discussed many of the unlawful eviction cases SERI has run, and in particular the Blue Moonlight, Dladla (currently on appeal) and Abahlali cases. SERI prioritises responding to the needs of the community, and so most of its cases come out of established relationships with clients and community groups. Tashwill warned me of the risk of having a case selection criteria without flexibility, which unduly restricts the ability to properly service the legal needs of a target client group. While being merely reactive is not ideal, nor is pursing strategic objectives oblivious to the very people that they intend serve. I, in turn, shared how Consumer Action tries to meet this dilemma. Consumer Action does set annual policy objectives, and these do inform its weekly legal case selection process. However, flexibility is inbuilt by way of an area of policy work called “hot issues“, which is informed by systemic issues emerging out of the legal, and Moneyhelp’s financial counseling, casework.

Playing a coordination role. Probono.Org in Johannesburg operates much like Justice Connect: it is a clearing house for pro bono work undertaken by the private law sector. Its office is also nestled in the Constitution Hill complex, one of my favourite places in the city. Here I met with its Head Staff Attorney, Annelie de Plessis, who told me about Probono.Org’s recently launched “One Child a Year Campaign“. The project calls on lawyers to take up a “watching brief” in child protection matters, providing at least one year’s commitment to monitor and oversee the child protection process.  IMG_0102This is in response to a series of incidents in which, despite court orders, the poor coordination of state agents has resulted in children, at worst, being forgotten in hospitals or abused within the child protection system.

The importance of a healthy workplace. Finally, I met with Patrick Hundermark, Chief Legal Executive of Legal Aid South Africa. Through our discussion, I was particularly struck by the pride with which Patrick discussed Legal Aid SA’s recent certification as a “Top Employer“. I got the impression that this had been achieved on the back of a concerted reform effort targeted at revitalising the organisation’s governance practices and systems, and informed by private sector best practice. In particular, he referred to how the organisation had sought to establish a compelling “employee value proposition” (EVP). This is, to quote Wikipedia, “the balance of the rewards and benefits that are received by employees in return for their performance at the workplace“. While the composition of an EVP is specific to an organisation, and will no doubt differ markedly between private, public, and not-for-profit sectors, it is an important organisational consideration across the board.

We also discussed the operation of Legal Aid SA’s impact litigation arm, which is guided by a publicly available Impact Services Policy (set out in its Legal Aid Guide). Through this mechanism, Legal Aid SA funds internally, externally and collaboratively run impact litigation. One interesting example of this is the current and controversial Marikana appeal to the Supreme Court of Appeal. On August 16 2012, 34 people, mostly employed by Lonmin platinum mines, were killed after police opened fire on striking miners. Many more were injured and arrested following this shooting. This tragedy has been compared to the 1960 Sharpeville massacre, and a Commission of Inquiry was called to investigate the incident. In 2013, Legal Aid was ordered by the High Court to fund the legal representation of the injured and arrested Marikana miners before that Commission. In 2014, Legal Aid sought leave to appeal that order to the Supreme Court of Appeal. Its chief executive, Vidhu Vedalankar, is reported as saying that the High Court had trespassed on the separation of powers, in that it “has not only changed the priorities set by Legal Aid SA but fundamentally interfered with its budget, thereby impacting on its ability to provide representation”’.

What’s next?

I have begun the report-writing, and you can look forward to a few short blog posts over the next few months as this work unfolds. Again, I welcome all feedback, suggestions, or clarifications on any of the points or questions raised in this blog to date.


Images:

[1] Picture of Mapungubwe Hill. Source: http://upload.wikimedia.org/wikipedia/commons/5/53/Mapungubwe_hill_limpopo.jpg

[2] Lawyers for Human Rights entrance.

[3] SERI sign.

[4] Probono.Org doorway.

Advertisements
Tagged , , , , ,

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.

Tagged , , ,

New York: innovation, optimism and risk

IMG_3665Give me a long enough lever and I can move the world” – Archimedes

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. image_2

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. image_1
  • 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.

On a related note, I also spoke to Ben Hoffman, an academic at Columbia University, about his former environmental litigation work with Peruvian communities through an organisation called Earth Rights International (see, for example, the recently settled case of Maynas Carijano v. Occidental Petroleum). In our discussion, Ben stressed the importance of building strong relationships with communities that lawyers work with and for, and to invest in this prior, as well as throughout, the legal process. This is an important point, as there is a risk that lawyers err toward the work they know best – the legal work – at the risk of neglecting relationships of understanding with individuals or groups unfamiliar, or even suspicious, of the law and its institutions. For those interested in an elegant and practical note on the application of community lawyering principles in the transnational context, do read Ben and his colleague’s excellent article on the issue: Benjamin Hoffman & Marissa Vahlsing, ‘Collaborative Lawyering in the Transnational Human Rights Advocacy’ (2014) 21 Clinical Law Review 255.

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.[1]

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.

Measuring impact.

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.

Optimism.image_3

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.

Up next?

Look out shortly for a brief excerpt on a spontaneous visit to Los Angeles.


Images:

1. Central Park in the snow, Manhattan.
2. A banner at the Urban Justice Centre, Manhattan.
3. Outside Make the Road New York, Bushwick.
4. A poster on the wall of the Urban Justice Centre, Manhattan.
Tagged , , , , , , ,